What does the death of activist Fr. Stan Swamy in custody indicate for the delivery of justice in India? Will it be a turning point for the judiciary and prisons to bring in reforms to ensure that the principle of presumption of innocence is respected, asks RAMESH MENON.
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STAN Swamy, 84, lived a full life leaving behind a legacy of work for the underprivileged and downtrodden. It should inspire generations of activists who want to ensure that we have an equitable society and that justice is done. Adivasis and Dalits in the backward state of Jharkhand, where he worked and lived, felt he was their voice. He was their pillar. Undertrials looked up at him as he battled to release them by fighting for them in court.
He was not a danger to the State.
He was detained by the National Investigation Agency on charges of acting against the State. No charge was even framed, let alone proved, against him. The documents that were found in his computer to implicate him in the Elgar Parishad case were almost certainly planted by sophisticated hackers. He is not the only one. Forensic experts of the United States-based Arsenal Consulting have detailed out how technology was employed to infiltrate computers of his co-accused activists Rona Wilson and Surendra Gadling, and "plant evidence".
He was the oldest person accused of terrorism in India.
There was no logical reason to charge him under the draconian Unlawful Activities (Prevention) Act (UAPA). He had no previous history of being involved in any terrorist act.
There was no logic in denying the 84-year-old ailing Fr. Stan bail as he was suffering from a degenerative disease, and could not even eat, bathe or write on his own. He needed help at every step by other empathic jail inmates. By no stretch of imagination could he have harmed the state if out on bail.
Just two months ago, Fr. Stan had told the Bombay High Court of how his Parkinson's was getting worse, his hearing had suffered and there was intense lumbar and abdominal pain and asked for medical bail. It was refused.
He was suffering from serious health complications like Parkinson's. As undertrials were being freed during the pandemic to decongest India's crowded jails, Stan was not granted bail. He contracted COVID-19 in jail. He had a premonition that he would die without a trial or without getting bail, and wished to spend his last days in Jharkhand to be with the people he loved and who loved him.
That the State kept him in prison knowing full well the dangers that it might pose with him ending up getting the virus and then dying, is something we all need to worry about. We also need to worry about why the judiciary showed no sensitivity and empathy.
This is despite the fact that the Supreme Court had directed in May this year that all those who were granted parole last year in accordance with the court's order should be granted parole again for a period of 90 days. These orders were passed by a three-judge bench of Chief Justice of India N.V. Ramana and Justices L. Nageswara Rao and Surya Kant on applications filed seeking the release of jail inmates in view of the second wave of COVID-19.
It is well-known that Stan had devoted his entire life to working for Dalits and tribals. He insisted on the implementation of the Fifth Schedule of the Constitution, which stipulated the setting up of a Tribes Advisory Council with members solely of the Adivasi community.
Fr. Stan had opposed the Netrahat Field Firing Project and the Koel Karo Dam Project as it would end up displacing thousands of tribals. Dr. Joseph Xavier, Director of the Indian Social Institute, Bengaluru, and a close friend of Fr. Stan, says that the Jharkhand state wanted Fr. Stan out of the way and so implicated him in a case based on his comments on Facebook that were released to the popular Pathalgadi movement that aimed to create awareness about the constitutional rights of tribals. This was done by inscribing the rights on stones in various parts of the village.
In 2016, Fr. Stan published a study that found that 97 percent of undertrials he interviewed said that allegations that they were Maoists or had links with them were not true. As many as 96 percent of them earned less than Rs. 5,000 a month. It is these people that Fr. Stan was fighting for as they were arrested on serious charges under draconian laws where they were not getting bail. He had spoken out for releasing undertrials who had been in jail for a long time without trial.
Ironically, he died as an undertrial.
Even in death, he contributed towards raking our conscience making us wonder why justice failed him and the Constitution. It forced us to realise that it is high time that reforms in our jails and the judiciary are long overdue.
The fact that he worked to secure the rights and dignity of India's oldest inhabitants who are today being edged out of their homes as they live in areas that are rich in natural wealth, is not something that will be forgotten in a hurry. As a Jesuit priest, he showed continuing commitment towards social issues and concerns. As he worked for the disempowered, was he not defending constitutional principles?
Why did the principle of presumption of innocence in law not work in Fr. Stan's case? The presumption of innocence presumes that an individual is considered "innocent until proven guilty". The broad idea is that it is better to let the guilty escape than make an innocent suffer.
Justice Ajit Prakash Shah, a former Chief Justice of Delhi High Court and former chairperson of the Law Commission of India, in an article in The Hindu said: "Posterity will blame the judiciary for the incarceration and unfortunate death of Fr. Swamy, and the continued imprisonment of so many others like him. But voices will continue to rise in protest. As Fr. Swamy himself said, 'We will still sing in the chorus. A caged bird can still sing.'"
Judges repeatedly rejected his bail applications although were enough legal grounds for Fr. Stan to ask for it.
Fr. Stan's imprisonment attracted the attention of human rights activists all over the world on the despairing state of human rights in India.
The United Nations (UN) Special Rapporteur on Human Rights Defenders, Mary Lawlor said Stan was imprisoned on "false charges of terrorism".
The spokesperson for the UN High Commissioner for Human Rights, Liz Throssell, had called for countries like India to release every person detained without a sufficient legal basis, including those detained simply for expressing critical or dissenting views.
Michelle Bachelet, the UN High Commissioner for Human Rights questioned his detention and had urged India to release him along with other human rights defenders arrested under UAPA.
After the passing away of Fr. Stan in custody, many relatives of others who have been similarly accused in the Elgar Parishad case are complaining of the conditions the accused are facing in jail, according to a report in The Times of India.
For instance, it said that Tusharkanti Bhattacharya, the husband of Prof. Shoma Sen, found her in tattered clothes during a video call, and it took a lot of insistence with the jail authorities to accept clothes for her. Shoma is said to be suffering from glaucoma and arthritis.
Monali Raut, the sister of Mahesh Raut, an activist from Gadchiroli, said that when he contracted Covid-19, he was isolated but there did not seem to be any proactive medical help from the jail.
Jenny Rowena, the wife of Many Babu, another activist, said that he was taken to hospital only after his eye infection worsened. It was there that the doctors detected that he had contracted Covid-19, she said.
Ten opposition party leaders have written to President Ram Nath Kovind pleading that he fix accountability for Fr. Stan's death in custody and also for foisting false cases against him. They also wanted the release of others like him who are in jail on "trumped-up charges".
Will the death of Fr. Stan be in vain? Or will be the precursor to change in the way justice is delivered and prisons are administered? If his death is in vain, it will only underline the failure of the state once again.
(Ramesh Menon is a senior journalist, documentary filmmaker, educator, and editor of The Leaflet. The views expressed are personal.)